Why the ‘Don’t ask, don’t tell’ policy is doomed

(Republished from The Washington Post)
By David B. Rivkin Jr. and Lee A. Casey
Saturday, February 13, 2010

When the Pentagon’s top brass announced last week that they no longer believe military unit cohesion suffers from the presence of openly gay men or women in the ranks, they effectively transformed a policy question into a legal one, to which the answer is clear: Congress can no longer mandate discrimination in the armed forces on the basis of sexual orientation.

In the 2003 case Lawrence v. Texas, the Supreme Court struck down a Texas law criminalizing same-gender sexual relations, reasoning that such conduct was part of a constitutionally protected liberty interest. The court also suggested that the Texas statute was vulnerable to challenge as a denial of equal protection of the laws. And it is application of the equal protection doctrine to the military’s professional assessment of the impact that openly gay service members have on combat effectiveness that is likely to be the end of “don’t ask, don’t tell.”

Congress, of course, has broad constitutional power to adopt rules and regulations for the armed forces that would be unthinkable in the civilian workplace. Moreover, the courts properly give such rules very great deference. In one leading case, the court upheld an Air Force restriction on the wearing of religious dress — in that case a yarmulke — while in uniform. As the court explained, in the military “there is simply not the same [individual] autonomy as there is in the larger civilian community.” Restrictions on homosexual conduct, and even the admission that a service member is gay or lesbian, might be justified on the same reasoning — but only if those restrictions are rationally related to a proper governmental purpose.

This doctrine of equal protection is the minimum standard by which the Supreme Court measures any law, regulation or policy that treats one group differently than another. It has been applied in Romer v. Evans to laws disadvantaging homosexuals. In that 1996 case, the court invalidated a provision of Colorado’s constitution that forbade adoption of anti-discrimination laws based on sexual orientation. It could find no proper governmental purpose supported by this limitation and concluded that the provision “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”

The “don’t ask, don’t tell” policy is now utterly vulnerable under that standard. When Congress enacted the ban in 1993, it justified the restrictions based on the military’s need for “unit cohesion.” Openly gay soldiers, Congress concluded, “would create an unacceptable risk.”

In 1993, the military agreed with, indeed encouraged, this assessment. Today, according to the chairman of the Joint Chiefs of Staff, Adm. Mike Mullen, it does not. Statements of Defense Secretary Robert Gates indicate that the Pentagon’s civilian leadership also no longer agrees. That these judgments have been reached after nearly a decade of superb combat performance by U.S. forces in both Iraq and Afghanistan, in situations where troops served together for months-long stretches under enemy fire and in incredibly confined conditions and were inevitably aware of each other’s intimate habits, including sexual orientation, makes them all the more compelling.

This would not be the end of the court’s inquiry when “don’t ask, don’t tell” is challenged, since it is the court’s assessment of Congress’s conclusions that must in the end govern. Yet the fact that the military’s senior leadership (both in and out of uniform) sees no significant threat to unit cohesion and combat effectiveness from permitting openly gay men and women to serve will make it all but impossible for Congress to articulate a rational basis for excluding them.

The writers are partners in the Washington law firm of Baker & Hostetler; they served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.